[1985] OLRB Rep. December 1759
1514-85-R United Electrical, Radio and Machine Workers of Canada (UE), Applicant, v. Meco Group Inc., Labelmasters and Papermasters Divisions, Respondent, v. Group of Employees, Objectors
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. Wilson and L. C. Collins.
APPEARANCES: Frank Piserchia and Wayne Gray for the applicant; David Elenbaas, Shawna Kadykalo and Guy Melton for the respondent; Patrick Mascarenhas, Bruce Dawe and Desmond Yeo for the group of employees.
DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON; December 16, 1985
The parties are agreed that the correct name of the respondent is: "Meco Group Inc., Labelmasters and Papermasters Divisions" and the style of cause of the application has been amended accordingly.
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The parties disagree whether the bargaining unit should be described to exclude part-time employees and whether Marion Ismond exercises managerial functions and should be excluded from the bargaining unit. The respondent was not employing any part-time employees at the making of the application, but the respondent and objectors claim that there is a history of the respondent employing part-time employees. The applicant contends that there is no history of the respondent employing part-time employees and, therefore, part-time employees should not be excluded from the bargaining unit. The applicant also takes the position that Ismond exercises managerial functions within the meaning of section l(3)(b) of the Act and should be excluded. The respondent and objectors take the opposite position. The parties are otherwise in agreement respecting the description of the appropriate bargaining unit. The extent of their agreement is expressed as follows:
All employees of the respondent in the Town of Halton Hills, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period.
The parties were advised at the hearing that the ultimate determination of the bargaining unit issues could not affect the applicant's entitlement to certification without a representation vote. Regardless of how those issues were resolved, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 30, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Notwithstanding the fact that the applicant had as its members the requisite number of employees in the bargaining unit in order for it to be entitled to certification without a representation vote, the Board has before it a statement of opposition to the application ("petition") containing the signatures of eight persons who had also signed applications for membership in the applicant. Furthermore, the Board received four identically worded, individual statements by persons purporting to be employees of the respondent reaffirming their support for the application. These statements say:
I hereby revoke my signature on the petition against the union and re-affirm my membership in and support for the United Electrical, Radio and Machine Workers of Canada (UE) to represent me in collective bargaining with Labelmasters Limited.
The Board will refer to these latter documents as "revocations". Two of these revocations were signed by employees in the bargaining unit who had also signed the petition. The petition and the revocations were filed with the Board not later than the terminal date of the application and are timely. While these documents do not alter the fact that on the terminal date of this application more than fifty-five per cent of the employees in the bargaining unit at the making of the application were members of the applicant within the meaning of section l(l)(l) of the Act, they do raise a question of what were the wishes of the employees respecting this application as at its terminal date. If the petition expresses the voluntary wishes of the employees who signed it, but for the revocations, it would raise sufficient doubt concerning the continued support for certification of the applicant by a sufficient number of employees who also signed membership cards, that the Board would generally exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote. On the other hand, if the revocations were made after the employees had signed the petition, are found to express the voluntary wishes of those two employees and are treated by the Board as having restored to the union the support of the two employees, the result would be to put the union back in a position where it was entitled to certification without a representation vote. Thus, the two revocations are relevant to deciding the wishes of the employees and to the question of whether the applicant is entitled to certification without a representation vote.
The Board advised the parties that the revocations were relevant and that it has been the Board's long standing policy to rely on the most recent, voluntary expression of the wishes of the employees as being the most reliable answer to the question of what were their wishes on the terminal date. For the underlying rationale for this policy, see the Board's decisions in Browning-Ferris Industries, [1982] OLRB Rep. June 816 and Baltimore Aircoil Interamerican Corp., [1982] OLRB Rep. Oct 1387, particularly paragraph 49. Accordingly, the Board also advised the parties that it would inquire into the circumstances under which the revocations were signed and filed with the Board in order to determine whether they expressed the most recent, voluntary wishes of the employees who signed them.
The onus of satisfying the Board that the revocations were signed after the petition and express the voluntary wishes of the employees rests with the applicant. The applicant put forward three witnesses for purposes of the Board's inquiry: Wayne Gray, a field organizer for the applicant, and two employees who were members of the applicant's organizing committee, Warren Cridland and Valerie Dawe. They were examined first by the Board and, in turn, by each of the parties beginning with the applicant, who also had a final opportunity in the nature of re-examination. No witnesses were called by any of the parties.
After the Board had completed its inquiry into the revocations, it received the submissions of the parties thereon and reserved its decision with respect to whether the revocations were voluntary and had been signed after the petition. While the documents contain the declaration ''I hereby revoke my signature on the petition against the union ....'', the Board generally does not rely on such documentary hearsay standing alone as conclusive of the validity of the revocations. Instead, by analogy to section 7 3(5) of the Rules of Procedure under the Act, the Board seeks viva voce evidence about the circumstances concerning the origin of the revocations and the manner in which each signature on them was obtained. The Board's authority to proceed by analogy to section 73(5) of the Rules comes from section 86 of the Rules. In this respect, the Board usually relies on the evidence of persons, other than the employees who signed the documents in question, who have first hand knowledge of those circumstances. This is done in order to protect the secrecy of employees' wishes regarding union representation as intended by section 111(1) of the Act.
This case illustrates the need for such evidence. As noted above the employees' signatures on two of the revocations do not appear on the petition, in spite of the assertion "I hereby revoke my signature on the petition... in the revocation statement which they signed. While the Board has expressed its understanding that employees might do that as a protective response to peer pressure (see, Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, at paragraph 49), the readiness of employees to respond that way demonstrates the risk of accepting the signed statements in the revocations as proof that they were signed after the petition. So the two identical declarations of the employees whose signatures do appear on the petition are of no probative value to the Board in deciding which document, the petition or revocation, is the more recent expression of employees' wishes. That problem could be overcome, however, by viva voce evidence of the circumstances surrounding the signing of the revocations such as would reveal the sequence of signing.
The Board finds from its review of the viva voce evidence that it fails to establish the revocations to have been signed after the petition. Therefore, even if the revocations are voluntary, they have not been proven to be the most recently expressed wishes of the persons who signed them. In these circumstances, it will be necessary for the Board to inquire into the petition filed in opposition to the application in order to determine whether it expresses the voluntary wishes of the persons who signed it.
In the result, the Registrar is directed to list this application for continuation of hearing on the earliest available date. The purpose of the hearing is to receive the evidence and representations of the parties respecting all remaining issues.
DECISION OF BOARD MEMBER, L. C. COLLINS;
I dissent.
In circumstances where, as here, the Board has before it the requisite evidence of membership in a trade union for the union to be certified, together with a petition and revocations, as long as the Board is satisfied that the revocations are voluntary, the Board should accept the evidence of membership together with the revocations as the best evidence of the employees' wishes, whether or not the revocations were signed before or after the petition.